No rerun of the referendum

_39082269_lordsstill_300I spoke in two debates in the Lords this week following the EU referendum on 23 June.  One point was common to both speeches.  On Tuesday and Wednesday, we had a debate on the outcome of the referendum.  I was speaker number 105, out of 115, but I like to think I still had something to add to the debate.  I was at least the only speaker to cite Anthony Downs, A. V. Dicey, and the ruling of the Chairman of Ways and Means, Sir Robert Grant-Ferris, on 29 February 1972.  In the speech, I developed three themes, on the referendum campaign, the referendum result, and whether primary legislation was necessary to trigger a notification under Article 50 of the Treaty on European Union.

The point I made about the referendum was that while it may not be binding,  in that there is no statutory obligation on government to trigger an Article 50 notification, it is misleading to refer to it as advisory.  During the course of the debate, some peers were arguing that as it was advisory, and as only a minority of the total electorate had voted for the UK to leave the EU, we should consider ignoring the result or hold a second referendum.  I was keen to knock this idea on the head.  We invited electors to vote on whether to remain in or to leave the EU.  The majority who voted went for the leave option.  That is a result which there is no legal obligation to fulfil, but where there is clearly a political obligation.  The distinction is one recognised by Dicey.  We cannot apply rules retrospectively.  If we wanted a threshold requirement, we needed to stipulate that at the time.  I raised the issue of a threshold on second reading of the EU Referendum Bill, but there appeared no appetite to pursue it.  We therefore were left in a situation where a simple majority suffices.  That may not be desirable, but it is the reality.

I returned to the point the following day, when Baroness King of Bow (Oona King) had a question for short debate, asking the Government whether it had made an assessment of the case for a second referendum on membership of the EU.  She said she was making the case for a later referendum once the terms of exit were known, but her argument was based on the outcome of last month’s referendum, in effect arguing that the electors had got it wrong.  In my short speech (given the number of speakers, we only had three minutes each), I reprised various of the points I made the previous day, but stressed that rerunning the referendum would convey the impression that the political class was not prepared to accept what the electors had decided.  That would undermine trust in the political process when that trust is already fragile.

There may be a case for a referendum later when the terms are known (though there is a debate to be had as to what the question would be, and whether a binary question would suffice), but to challenge the result of last month’s referendum is naïve and dangerously so.  We may not like it, but we have the result and we have to stick to the rules as they existed and were understood by the electors.

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About Lord Norton

Professor of Government at Hull University, and Member of the House of Lords
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19 Responses to No rerun of the referendum

  1. It’s refreshing to read the cool reasoning involved in reaching so many of your conclusions in good times and bad and whether I agree with your final result or not. In a very different tone, let me commend you for wishing to avoid flailing about in the manner of a dying animal as the course of policy. Can Her Majesty lend you to our system for a bit?

  2. Croft says:

    I saw some of both debates – If (far too) many Lords were trying to give an impression of barely disguised contempt for the electorate they certainly succeeded.

    Lord Cavendish if Furness seemed pretty spot on when he said “many senior Members of your Lordships’ House have hedged their acceptance of the public’s verdict, to the point of not really accepting it at all.”

    On occasions it seemed more like a parody – Did I really hear one of the LDs complaining about the fact non UK citizens hadn’t been allowed to vote and that if only (paraphrased) Old Uncle Tom Cobley and all had been voting things could have been different.

    “There may be a case for a referendum later when the terms are known (though there is a debate to be had as to what the question would be, and whether a binary question would suffice),

    I tend to think that this would b difficult in a binary question and dangerous if not corrosive to the purpose of the first referendum. If we move this way it may too easily look like the various other countries who had treaty rejections but then essentially asked the question again in the hope of a different result. But more than that I think it will encourage obstruction/sabotage of the negotiation process. If the Leavers in parliament effectively conduct a wrecking campaign, and the EU negotiation team see the same, because there is another vote then the negotiation position for the UK is built on sand.

    • Croft says:

      Sorry – tired brain – “If the [i]remainers[/i] in parliament effectively conduct a wrecking campaign, and the EU negotiation team see the same, because there is another vote then the negotiation position for the UK is built on sand.”

      • maude elwes says:

        @ Croft

        This is an example if ever there was one, that the Lords must be an elected chamber. We, the people, cannot have an unelected house of welfare recipients deciding they will overrule our democratic rights. They certainly are learning dgreat lessons from that hole called the EU.

        Remember what is behind this though, as that is the key. So many of these ‘parliamentarians’ are being bribed, one way or other, by the money they glean from the
        EU. Take a good hard look at how many are on some kind of kick back from that union. The Kinnocks, both of them, followed by son Stephen. They rely on staying in as it is shaky, to say the least, once Brexit is settled that they will receive another penny.

        Then there are the gentleman farmers on various and sundry subsidies for trees and milk and so on, ad infinitum. They have been bought. And why do I say that, well, you only had to listen to the Remain team throughout the entire lead up to polling day, and they did not have one reason, that made any sense at all to Remain. The fright tactics, we will see WWIII, when the yanks already have us lined up to face Russia in Europe, planned for and discussed for at least two years. Now in full practice in Poland. Then the Bank of England foreigner Carney telling us we will be facing a recession, when it was clear we would be facing a recession whether we remained in or out. We being just three steps away from Greece.

        Then there was the US threat, that we cannot leave as they won’t allow it. All because, that could mess up their military expansionist plans, unless the idiot British fighting on their behalf pressed for agreement in Europe’s inner circle which does their job for them. Do they really believe they will continue to get away with that? It is all over the internet and has been for some time. The expectation that the impending European defence strategy will end with both our sons and daughters facing the call up and nuclear possibilities is quite widespread and will grow as time goes by. You would think our Parliamentarians didn’t know what is going on, as their anger at the OUT vote doesn’t seem to have educated them very well. Not even after Ukraine and the anti Russian stand there and in Poland. It simply hasn’t got them including their own families in this fun brawl.

        Here is a little example of what we are hearing and seeing with our own eyes. Remember Baroness Ashton and Victoria Newland? Dr Paul Craig Roberts is a bigger fish than those fools can use expletive vocabulary at.

        PS: I do hope the papers expose May’s dismal record regarding sexual abuse of English children. In my opinion, that should swallow the row over motherhood as an appealing attribute by quite a jolt. Of course motherhood must not be praised or revered, it annoys too many politically anti female crones.

        And

        The Remain twisters must understand, that, if there is another referendum, it will be a minimum of at least a million more votes to Leave. Include as many EU citizens as you wish in the vote, they are far more politically enlightened than the British.

  3. Croft says:

    Fwiw Prof Mark Elliott’s blog is a good clear read on the legal issues – and frankly a welcome source of sanity against some of the frankly absurd legal arguments that some have been making.

  4. maude elwes says:

    Here is a little back up to my earlier post. It was in the Telegraph year 2000.

    http://www.thenewamerican.com/world-news/europe/item/23120-the-real-agenda-behind-the-cia-spawning-the-eu

  5. tizres says:

    Lord Norton, I wish to register and express my anger (yes, I know) to the Speaker of the HoC (and/or another suitable Parliamentary office holder) regarding the Short Money given to Mr Corbyn. Do you have any advice?

    • Croft says:

      Short money is given to the leader of the opposition (+party) its not something the speaker has a say over – except insofar as recognising the leader of the opposition

      • tizres says:

        Quite so, though the parliament.uk site highlights a degree of complexity in the term ‘Official Opposition’:

        “Her Majesty’s Official Opposition is usually the political party with the second-largest number of seats in the House of Commons.” *

        This, I assume, allows for the loss of seats due to by-elections, and losing or resigning the Whip. Following on from that, it is entirely conceivable that we could have two official opposition parties with exactly the same number of MPs. Surely a tad ridiculous given the original aims of providing financial support and, in any case, recalling the SNP were no match for Dennis Skinner’s heat-seeking buttocks, who sits where and asks what when?

        Separately, the introduction of funding of the Office of the Leader of HM’s Official Opposition, was recommended by Lord Neill’s 1998 report, The Funding of Political Parties in the United Kingdom, and, relative to my original question, he said:

        “…we acknowledge that the Office of the Leader of the Opposition is a constitutional office which requires special consideration…” **

        There needs to be more than a requirement that the office holder belongs to the the party with the second largest number of MPs; that person also need to be recognised as the legitimate leader of said party. How does Parliament formally recognise such legitimacy? Please don’t say that’s down to the Electoral Commission…

        * http://www.parliament.uk/mps-lords-and-offices/government-and-opposition1/opposition-holding/
        ** https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/336870/5thInquiry_FullReport.pdf

      • tizres says:

        Quite so, though the parliament.uk site highlights a degree of complexity in the term ‘Official Opposition’:

        “Her Majesty’s Official Opposition is usually the political party with the second-largest number of seats in the House of Commons.” *

        This, I assume, allows for the loss of seats due to by-elections, and losing or resigning the Whip. Following on from that, it is entirely conceivable that we could have two official opposition parties with exactly the same number of MPs. Surely a tad ridiculous given the original aims of providing financial support and, in any case, recalling the SNP were no match for Dennis Skinner’s heat-seeking buttocks, who sits where and asks what when?

        Separately, the introduction of funding of the Office of the Leader of HM’s Official Opposition, was recommended by Lord Neill’s 1998 report, The Funding of Political Parties in the United Kingdom, and, relative to my original question, he said:

        “…we acknowledge that the Office of the Leader of the Opposition is a constitutional office which requires special consideration…” **

        There needs to be more than a requirement that the office holder belongs to the the party with the second largest number of MPs; that person also need to be recognised as the legitimate leader of said party. How does Parliament formally recognise such legitimacy? Please don’t say that’s down to the Electoral Commission…

        * http://www.parliament.uk/mps-lords-and-offices/government-and-opposition1/opposition-holding/

      • Croft says:

        I’m all but certain – though i haven’t the time to look for the details now – that for all purposes whomsoever the Speaker recognises as leader of the opposition is leader of the opposition for parliamentary purposes. So the Labour MPs could ‘elect’ their own leader and the Speaker would recognise that person as opposition leader irrespective of who was officially leader of the largest party.

      • tizres says:

        After a small trawl, Peter Wishart asked the Speaker for clarification on the same question. Their exchange can be read here:
        https://hansard.parliament.uk/commons/2016-06-29/debates/16062967000002/PointOfOrder

      • tizres says:

        Section 2 of the Ministerial and other Salaries Act 1975 is similarly helpful:
        http://www.legislation.gov.uk/ukpga/1975/27/section/2

        (with love and thanks to my husband)

    • Lord Norton says:

      tizres: I was thinking of doing a post on the position of the Opposition, but you have rather already done the research for me.

      • tizres says:

        Lord Norton, I might have been flattered if I didn’t know how much more work there is to be done on this! For example, the issue mentioned above: whether the UK is permanently moving away from the two-party system depends on those in Parliament today, but a tie between two or more minority parties is now more likely and has consequences for matters such as pre-election arrangements for the official Opposition, as discussed in the Cabinet Manual.

  6. Croft says:

    LN: On a slight tangent. I wonder if you might consider if you could see a means to remedy a significant problem of recent referendum for any future referendums. The press reports seem to indicate that not only did the government not plan for both outcomes but effectively prevented the civil service from doing so. If those press reports are correct then that seems harmful for good government. I wonder perhaps whether a Lord committee/ or individuals might be able to see a means to put on a statutory basis some requirement for the CS to prepare proposals for implementing both outcomes of any future referendum?

  7. maude elwes says:

    As far as I can see, they had no need to plan for a ‘what if vote’ and they knew it. For, there was no intention then or now to go through with the ‘Brexit means Brexit’ bull we are currently having to listen to.

    The new cabinet is laughable, and beside, Boris has already fessed up that we will be exactly as previously, only, more so. In even deeper than we are now. Happy independence delay.

  8. maude elwes says:

    On the question of Opposition.

    As I see it, the best way forward is to form an Opposition that is funded by the people of said party directly. .

    Jeremy Corbyn appears to be funded by the masses who support him as they want a voice in that chamber they can feel is their own. What they are offered in local elections are appointed individuals who call themselves Labour MP’s and those MP’s claim ‘they’ are the PLP. They may well be, but, from my point of view, the only people backing them are their own PLP. Best move is to let them face another election just to see where they will fit.

    What JC has to do is to either let them spin off to their own tune, choose their ‘Normal’ leader and have fun with themselves. A sort of a circle of the committed to oneself. It could be called the ‘Self Love Party.’ Or, even better, the Self Preservation Society.’

    Then, the official Labour party, could be solely elected by its members, with JC as their preferred leader, who would then frequently address the funders throughout the country, as he could take their rightful concerns to the House of Commons on their behalf. That would leave, the ‘Self Love Party’ to find funding through their own pockets or those of their mates. Then they can tell the world they wish to be taken seriously, as ‘they’ have all the experience of life inside those walls and understand just what we all need from ‘their’ point of view.

    It would, of course, mean JC must be given more seats to cover the electorate who are looking to him to be their true voice of opposition to the Tory austerity mob. As the Self Love Party would be working on behalf of the commons party as they have no social concerns other than their own. And the, Tories, who should be well funded by the top drawer brigade, could carry on the way they are. A percent of them being for Leave and the rest for Remain. Somewhere in there the Greens, the Independents, as well as the LibDems, could be accommodated. That is, if they could manage to get enough backers from the public to donate on their behalf, as JC has.

    What a fun PMQ’s that would be. It may have to be brought back to twice a week, but, that is no big deal, as most of them love their face on the box anyway.

    So, no worries.

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